First DUI Offense
For a first offense within 10 years, the applicable sections depend upon whether probation is granted. If probation is not granted, CVC § 23536 requires a minimum jail sentence of four days and a minimum fine of $390 (mandatory fees and assessments, total fees are likely to exceed $2,000.00). At least 48 hours of the incarceration must be continuous, but the time can be served when the defendant is not working.
§ 23536 provides:
(a) If any person is convicted of a first violation of Section 23152, that person shall be punished by imprisonment in the county jail for not less than 96 hours, at least 48 hours of which shall be continuous, no more than six months, and by a fine of not less than three hundred ninety dollars ($390), nor more than one thousand dollars ($1000).
(b) The court shall order that any person punished under subdivision (a), who is to be punished by imprisonment in the county jail, be imprisoned on days other than days of regular employment of the person, as determined by the court. If the court determines that 48 hours of continuous imprisonment would interfere with the person’s work schedule, the court shall allow the person to serve the imprisonment whenever the person is normally scheduled for time off from work. The court shall make this determination based upon a representation from the defendant’s attorney or upon affidavit or testimony from the defendant.
The statute goes on to provide for a six-month license suspension pursuant to § 13352 or 13352.1. CVC 13352 has been significantly amended effective January 1, 2019. Previously a person convicted of a first DUI misdemeanor was immediately eligible for a restricted license with enrollment in a DUI program and attaining an SR22. The same is true with the new law, except unless the Court orders a person to install an Interlock Ignition Device (IID), one will have the option to either install an IID or have a restricted license for 12 months. See Veh. Code, § 23575.3, subd. (h)(1)(A)(i).
If the Court does not order an IID, then one must do the following in order to obtain a restricted driver’s license for 12 months, which allow them to drive only to, from and during the course of work and to and from alcohol classes:
(1) Submit proof satisfactory to the department of either of the following:
(A) Enrollment in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as described in subdivision (b) of Section 23538 of this code.
(B) Enrollment in a program described in subdivision (b) of Section 23542, if the court has ordered the person to enroll in, participate in, and complete either program described in that section, in which case the person shall not be required to provide proof of the enrollment described in subparagraph (A).
(2) Submits proof of financial responsibility, as defined in Section 16430.
(3) Pays all applicable reinstatement or reissue fees and any restriction fee required by the department.
See Veh. Code, § 13352.4.
he specific provisions are set forth at the end of this section.
However, if the person is granted probation, CVC § 23538 provides no mandatory provision for incarceration, but may impose a condition of at least 48 hours but no more than six months along with the same fine, and six month license suspension.
§ 23538 provides:
(a)(1) If the court grants probation to person punished under Section 23536, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as a condition of probation that the person pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1000). The court may also impose, as a condition of probation, that the person be confined in county jail for at least 48 hours, but not more than six months.
(a)(2) The person’s privilege to operate a motor vehicle shall be suspended by the department under paragraph (1) of subdivision (a) of Section 13352 or Section 13352.1 The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.
Finally, § 23600 (b) sets forth further minimum conditions of probation:
In addition to the statutory conditions of probation, judges commonly impose such terms as restitution, community service, Cal Trans roadside trash collection, Alcoholics Anonymous attendance, attendance at a victim impact panel such as at the county morgue or a Mother’s Against Drunk Driving (MADD) class, alcohol monitoring such as continuous breath testing or an ankle monitor to detect from alcohol, abstain from alcohol, or completion of an alcohol rehabilitation program. Many judges also impose search conditions. Counsel should object to unreasonable terms; and those not imposed by statute. Involvement in a residential alcohol rehabilitation program can, of course, count as time served in custody for purposes of jail sentences. [See Penal Code § 2900.5].
The statute further provides for a mandatory violation of probation where the defendant is subsequently found to have driven with a blood-alcohol concentration of 0.01% or more while on probation. In addition a probationer will lose his/her license for a period of one year if they drive with .01 or more BAC while on probation with no opportunity to obtain a restricted license. CVC § 23154